The Termination and Revision of Treaties in the Light of New Customary International Law

by Nancy Kontou

Overview

This highly original and challenging study offers an examination of the tensions which exist between the two most important sources of international law: Treaty and Custom. Through detailed analysis of state practice and key decisions of international tribunals, the author considers the circumstances by which new customary law may abrogate the obligations of a prior treaty, and argues that there is a special category of situations which supports the right of a state to renegotiate a treaty by an appeal to new customary law. Scholarly and thought-provoking, this is an original and, at times, controversial study which will become essential reading for all those interested in the sources of international law and the observance and enforcement of treaty obligations.

Product Details

ISBN-13:	9780198258421
Publisher:	Oxford University Press
Publication date:	03/02/1995
Series:	Oxford Monographs in International Law
Edition description:	REV
Pages:	186
Product dimensions:	6.38(w) x 9.50(h) x 0.68(d)

About the Author

Commission of the European Communities, Brussels

Table of Contents

	Abbreviations	ix
	Table of Cases	xi
	Table of Treaties	xiv
1.	Introduction	1
1.1.	The Issue	1
1.2.	Definitions	2
1.3.	Importance of the Issue	10
2.	An Overview of the Literature	16
2.1.	Treaty Interpretation in the Light of New Custom	16
2.2.	Priority between Inconsistent Obligations	19
2.3.	Treaty Termination or Revision Following the Development of New Custom	22
2.4.	Conclusion	36
3.	State Practice: The Impact of the New Law of the Sea on Prior Fisheries Agreements	37
3.1.	The Evolution of the General Law on Fisheries Jurisdiction	37
3.2.	Fisheries in the North Pacific (Russia-Japan)	40
3.3.	Fisheries off the Faeroe Islands (United Kingdom-Denmark)	43
3.4.	Fisheries in the North Atlantic and the 1964 London Fisheries Convention	46
3.5.	The Renegotiation of Fishing Rights in Canadian Waters	50
3.6.	US Participation in International Fishery Commissions	57
3.7.	Spanish Fishing Rights in European Community Waters	64
3.8.	The Fisheries Dispute between Morocco and Spain	68
4.	State Practice: Other Examples	72
4.1.	The Extradition Regime in the East Indies	72
4.2.	The Treaty on the Panama Canal	74
4.3.	The Abolition of the Capitulations	78
4.4.	The Impact of New Custom on the Vienna Classification of Diplomatic Agents	85
4.5.	The Termination of the 1936 Anglo-Egyptian Treaty of Alliance	90
4.6.	The Impact of the Concept of Human Rights on the Minorities Treaties	91
4.7.	The Abrogation of an 'Unequal' Treaty by China	96
4.8.	Treaties on International Watercourses	98
4.9.	The Shatt-al-Arab Boundary Dispute	103
4.10.	The Antarctic Treaty Regime	104
4.11.	Removal of Installations on the Continental Shelf and the 1958 Geneva Convention	107
5.	Decisions of International Tribunals	109
5.1.	The Fisheries Jurisdiction Case (United Kingdom v. Iceland)	109
5.2.	The United Kingdom-France Continental Shelf Arbitration	115
5.3.	The Spanish Fishermen's Cases before the European Court of Justice	118
5.4.	The La Bretagne Arbitration	122
5.5.	The Namibia Advisory Opinion	124
5.6.	The Guinea-Bissau/Senegal Maritime Boundary Arbitration	125
5.7.	The Iran-US Claims Tribunal	127
5.8.	Conclusion	132
6.	Some Criticisms	135
6.1.	The Vienna Convention on the Law of Treaties: The Significance of an Omission	135
6.2.	Opinio juris	140
6.3.	The Treaty as lex specialis	141
7.	Conclusions: Supervening Custom as a Ground of Treaty Termination or Revision	145
7.1.	Conditions of Application	146
7.2.	Supervening Custom as a Fundamental Change of Circumstances	149
7.3.	Effect of Supervening Custom on the Treaty Relationship	150
7.4.	Final Remarks	156
	Bibliography	158
	Index	167

Editorial Reviews

"[A] carefully researched contribution to the expanding legal scholarship dealing with aspects of the relationship between treaties and custom...."—American Journal of International Law

"This very special work on treaties provides useful insight into the relationship between two sources of International Law—custom and treaty....The author provides a refreshing sense of balance in her criticisms and conclusions."—ASIL United Nations Decade Newsletter

From the Publisher